Advances in international jurisprudence since 2009 have clarified human rights law in relation to conservation, decidedly moving these issues from the realm of policy to one of legal obligations. This jurisprudence also supports the conclusion that failure to respect indigenous peoples’ rights could affect the legitimacy and even continuation of a considerable number of protected areas and other non-consensual conservation interventions.

Between 2010 and 2017, international judicial or quasi-judicial human rights bodies have adopted four significant decisions related to conservation. They address protected area (1) establishment, (2) management, and (3) the restitution of lands incorporated into protected areas.

While summarizing some of the key normative developments in these decisions [Xákmok Kásek v. Paraguay (2010), Endorois Welfare Council (2010), Kaliña and Lokono Peoples v. Suriname (2015) and African Commission on Human and Peoples’ Rights v. Kenya (2017)], this piece does not address indigenous land rights per se. However, it is key to recall that indigenous property rights derive from their customary tenure systems,[1] and any proposed or actual encroachment on their lands, irrespective of legal status in domestic law, triggers a series of obligations incumbent on both public and private sector actors.[2]

Global and regional jurisprudence essentially tracks the norms set out in the 2007 UN Declaration on the Rights of Indigenous Peoples,[3] which therefore provides an indispensable reference point, both in terms of guarantees for indigenous territories and indigenous peoples’ rights more generally.

Protected Area Establishment: The necessity if considering Public Interest, Necessity and Proportionality

While the public interest doctrine, in relation to protected area establishment, is often understood by States and others to provide an overriding justification that permits coercive conservation measures, trumping rights in the process, human rights bodies have long made clear that a valid public interest declaration is only the first step and that any activity that may lawfully affect certain human rights also must comply with necessity, proportionality, non-discrimination[4] and other tests.[5]

States must demonstrate that coercive conservation is “strictly necessary” and that they have chosen the least restrictive option from a human rights perspective[6] to satisfy the stated public interest.[7] Any restrictions must also be proportionate and closely tailored to the asserted public interest.[8] These considerations are questions of fact, and constrained by facts, rather than political discretion.[9] Therefore, evidence of the efficacy of indigenous territorial conservation is central to assessing necessity and proportionality as well as to whether coercive conservation measures are permissible and, if so, to what extent.

As a general principle, it is highly relevant that indigenous territories “coincide with areas that hold 80 percent of the planet’s biodiversity”[10] and that research consistently “reveals a strong correlation between indigenous presence and the protection of natural ecosystems.”[11] Various sources also confirm that indigenous peoples are at least as good, if not better, at conservation than States and others.[12] Tauli-Corpuz explains that this body of research, at a minimum, “puts the onus on states to justify why non-consensual protected areas may be strictly necessary within indigenous territories” and to “substantiate that they have rigorously applied the criteria that would allow them to intervene in indigenous territories, including through undertaking participatory assessments of alternatives.”[13] It also strongly supports the view that respect for indigenous peoples’ rights is “often the best or only way to ensure the protection of biodiversity” and successful conservation.[14]

The Inter-American Commission on Human Rights (“IACHR”) observes there must be a “rational connection” between protection of the environment and restrictions on the ownership, use and enjoyment of indigenous peoples’ territories.[15] Where it can be shown that indigenous management and conservation is effective, there would be no factual basis for, and hence no need to resort to, coercive measures. Doing so would be unnecessary and disproportionate to the asserted public interest.

The above requirements are contextualized and elaborated on in the recent jurisprudence. In Endorois, for instance, the African Commission on Human and Peoples’ Rights (“AfCom”) observed that the denial of the Endorois’ “property rights over their ancestral land is disproportionate to any public need served by the Game Reserve.”[16] Similarly, in May 2017, the African Court of Human and Peoples’ Rights (“ACTHPR”) ruled that Kenya had “not provided any evidence” to support its claim that occupation by the Ogiek was detrimental to the environment, and, therefore, “the continued denial of access to and eviction from the Mau Forest … cannot be necessary or proportionate to achieve the purported justification of preserving the natural ecosystem….”[17] Referring again to Kenya’s claim, the ACTHPR ruled that “this cannot, by any standard, serve as a reasonable and objective justification for the lack of recognition of the Ogieks’ indigenous or tribal status and denying them the associated rights derived from such status.”[18] It ruled in the same way with respect to violations of cultural rights.[19] This is consistent with the IACHR and IACTHR’s jurisprudence, which affirms that indigenous lands are fundamental to indigenous peoples’ cultural integrity and survival.[20] This jurisprudence additionally holds that certain restrictions may be either “impermissible”[21] or subject to indigenous peoples’ free, prior and informed consent, irrespective of the asserted public interest.[22]

Management

Kaliña and Lokono contains the most detailed jurisprudence relating to the management of protected areas. As a general principle, the IACTHR explains that, from the date the State accepted its international commitments “it should have endeavoured to ensure compatibility between the protection of the environment and the collective rights of the indigenous peoples, in order to: (a) ensure access to and use of their ancestral territories for their traditional ways of life in the nature reserves, and (b) provide the means for them to participate effectively in the objectives of the reserves; … and (c) to participate in the benefits derived from conservation.”[23]

With regard to “effective participation,” the IACTHR observed that “it is necessary to: (i) recognize the right of the indigenous peoples to use their own institutions and representatives to manage, administer and protect their traditional territories; (ii) ensure a decision-making system in which the indigenous peoples participate fully and effectively; (iii) seek agreements between the respective communities and the conservation agencies that establish the management, the commitments, the responsibilities, and the purposes of the area, and (iv) guarantee access to information regarding any measures taken in relation to these areas.”[24]

Additionally, indigenous peoples’ traditional practices that “contribute to the sustainable care and protection of the environment should be maintained, protected and promoted. Thus, it is pertinent to support the indigenous peoples’ knowledge, institutions, practices, strategies and management plans related to conservation.”[25]

While more limited in its scope and analysis than Kaliña and Lokono, the IACTHR’s judgment in Garífuna Community of Punta Piedra v. Honduras found violations of property and participation rights in connection with the State’s failure to consult about the establishment of a protected area overlapping part of the community’s traditional lands and, later, about the terms of its management plan.[26] It ordered, inter alia, that the State adopts effective measure to guarantee the community free access, use and enjoyment of its collective property in that part of its territory within the National Park,[27] and awarded monetary damages for the violations incurred.[28]

Restitution

Failure to respect indigenous peoples’ rights may result in challenges to the legitimacy and even continuation of protected areas and other conservation initiatives through, for example, restitution of all or parts of the lands included therein. The AfCom recommended restitution in Endorois[29] and the ACTHPR is expected to address, and possibly order, restitution in a forthcoming reparations judgment in the Ogiek case.[30]

This recent jurisprudence builds on existing rules and norms and clarifies their application in the conservation context.[31] These same principles are also reflected in international policies on protected areas, for example, in the 2003 and 2014 decisions of the World Parks Congress.[32] Note also that all but one of the protected areas at issue in these cases was created prior to the respondent State’s ratification of the relevant treaties; thus, all protected areas are potentially subject to restitution, irrespective of when they were first established and to the extent that ongoing and continuous violations may be verified.

In Xákmok Kásek, the IACTHR found that the nature reserve imposed “restrictions to use and ownership, including the prohibition to occupy the land, as well as the traditional activities of the members of the Community such as hunting, fishing and gathering.”[33] Because of the ongoing relationships between the community and the lands in the reserve, the Court ruled that the affected people’s right “to recover their lost lands remains in effect” and it ordered restitution of the same.[34]

Likewise, in Kaliña and Lokono, the IACTHR verified “a continuous relationship between the Kaliña and Lokono and certain areas [of nature reserves] that they use for their way of life,” and, therefore, ruled that they have the right to “the possible restitution of the parts of their traditional territory within the nature reserves….”[35] The term ‘possible’ should be understood in light of the Court finding that it lacked sufficient information about “the precise dimension of their traditional territory that is within these reserves.”[36] Nonetheless, it required and ordered[37] that the State, as part of the process of titling the traditional territory, “must weigh the collective rights of the Kaliña and Lokono peoples against the protection of the environment as part of the public interest” to determine whether restitution should also take place.[38] The IACTHR explained that this ‘weighing’ must assess the necessity and proportionality of any restrictions to the Kaliña and Lokono’s rights in the reserves, including whether continued denial of their ownership rights to all or parts of the reserves is defensible to achieve nature conservation objectives.[39] Moreover, this should be understood in conjunction with the IACTHR’s conclusion that indigenous peoples play “an important role in nature conservation, since certain traditional uses entail sustainable practices and are considered essential for the effectiveness of conservation strategies. Consequently, respect for the rights of the indigenous peoples may have a positive impact on environmental conservation.”[40]

Finally, the IACTHR ordered restitution in Kaliña and Lokono despite finding that, because the reserves were created prior to the entry into force of the relevant treaty, it lacked jurisdiction to examine their creation and was “prevented from examining aspects related to the process that led to the technical determination of the dimensions, limits, and areas established as nature reserves.”[41] This meant that the Court was able to address ongoing or new issues related to the reserves, but not their establishment, leaving a number of issues unaddressed, procedural ones especially. It indicated, however, that its ruling would have been different, and along the unequivocal lines of Xákmok Kásek, if it had had jurisdiction over “the creation and persistence of the nature reserves” rather than solely their “existence” and ongoing effects.[42] Either way, should it be determined that it is unnecessary or disproportionate to deny or restrict the ownership and/or other rights of the Kaliña and Lokono, the lands within the reserves must be returned to them as part of the titling process and conservation objectives must be addressed in other ways and within the context of full respect for their territorial and other rights.

Action?

In the past 18 months, two United Nations Special Rapporteurs have penned reports on human rights and conservation: Victoria Tauli-Corpuz, UN Special Rapporteur on the rights of indigenous peoples, and John Knox, UN Special Rapporteur on human rights and the environment.[43] These reports stress that human rights obligations “apply not only to measures aimed at exploitation of resources, but also to those aimed at conservation,” and duty-bearers have enhanced obligations to respect the rights of “those who have long-standing, close relationships with their ancestral territories.”[44]

The Rapporteurs also observe that violations of indigenous peoples’ rights persist in conservation actions and that many states[45] and the conservation community, especially its largest actors, have yet to adequately comprehend and develop effective mechanisms to respect these rights.[46] Tauli-Corpuz observes that this pattern of violations is long-standing, affects rights essential to indigenous peoples’ survival and well-being,[47] and is particularly pronounced in countries that have not adequately recognized collective land rights and associated protections.[48] Noting that a range of conservation actors have adopted policy statements addressing indigenous peoples’ rights, Tauli-Corpuz observes that these “are at times elusive regarding the specific rights of indigenous peoples,”[49] and that “considerable implementation gaps remain and new threats to human rights-based conservation are emerging.”[50] The Rapporteurs conclude that conservationists need to intensify “efforts to fulfil their commitments to a rights-based approach to conservation,”[51] and that “States and conservation organizations need to implement measures to recognize the rights of indigenous peoples as a matter of priority.”[52]

[1]See e.g., UNDRIP, Art. 26(1), providing that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”

[3]See e.g., Kaliña and Lokono Peoples, para. 139, footnote 178, where the Court cites UNDRIP, Art. 26, and states that “Similarly, [that article] recognizes the right to lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired, as well as the right to own, use, develop and control these lands; thus, States must give legal recognition and protection to these lands, respecting the customs, traditions and land tenure systems of the indigenous peoples concerned.”

[4]See e.g., Asmundsson v. Iceland, ECtHR, Judgment of 12 October 2004, at §40 (ruling that “Unjustifiable differential treatment in itself” strongly supports a finding that restrictive measures are impermissible, “which consideration must carry great weight in the assessment of the proportionality issue…”); and Xákmok Kásek Indigenous Community v. Paraguay, IACTHR, Ser. C No. 214, 24 August 2010, at para 274 (hereinafter “Xákmok Kásek”). Such considerations are also incorporated into domestic legal regimes where regard to equality is often constitutionally required when assessing the ‘necessity’ of measures limiting rights (e.g., Section 36 of the South African Constitution).

[6]Hatton v. United Kingdom, European Court of Human Rights, Judgment of 8 July 2003, at §127 (where the ECHR identified the obligation of states to minimize interferences with rights by seeking alternative solutions, “and by generally seeking to achieve their aims in the least onerous way as regards human rights”).

[7]Case of Ricardo Canese, IACTHR, Ser. C No. 111, 31 August 2004, at para. 96; Case of Herrera-Ulloa, IACTHR, Ser. C No. 107, 2 July 2004, at para. 121 (quoting Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (arts. 13 and 29 American Convention on Human Rights), OC-5/85, 13 November 1985, para. 30). See also Article 46(2) of the UN Declaration on the Rights of Indigenous Peoples (providing that restrictions on indigenous peoples’ rights must be “non-discriminatory and strictly necessary,” and solely concern securing due recognition and respect for the rights of others or the “just and most compelling requirements” of democratic society”).

[8]See e.g., Angela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009, at para. 7.6 (ruling that, in the case of indigenous peoples, State parties “must respect the principle of proportionality so as not to endanger the very survival of the community and its members”) and; Saramaka People, at para. 128, and 129-134 (defining ‘survival’ as indigenous peoples’ “ability to ‘preserve, protect and guarantee the special relationship that they have with their territory’, so that ‘they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected’”).

[9] Various human rights bodies apply strict standards of scrutiny to restrictions to indigenous peoples’ rights and explicitly reject the application of a ‘margin of appreciation’ in such cases. See e.g., I. Lansman et al. vs. Finland (Communication No. 511/1992), CCPR/C/52/D/511/1992, at para. 9.4 (observing that “A State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27”); and, Australia. CERD/C/AUS/CO/14, 14 April 2005, para. 16.

[10] C. Sobrevila, The Role of Indigenous Peoples in Biodiversity Conservation: the natural but often forgotten partners, (World Bank, Washington D.C., 2008), at p. 5 and 20.

[11]Id. (citing research conducted in the Amazon and then again in southern Mexico and Central America, comparing maps of forest cover and biodiversity with indigenous territories and finding that the highest areas of forest cover, in some cases, the only forest cover, and highest incidences of biodiversity all coincided with the indigenous territories).

[12] S. Stevens, Indigenous Peoples, National Parks, and Protected Areas: A New Paradigm (U. Arizona Press, 2014) (summarizing the findings of the various sources).

[15]Kaliña and Lokono Peoples, Concluding Statement of the IACHR, Audio Transcript, Part 3, at 1:32:00 (observing that there is “no rationale connection, none” in the case sub judice).

[16]Id. at para. 214 (stating also that any limitations on rights must be proportionate to a legitimate need, and should be the least restrictive measures possible, and, at para. 215, that: “a limitation may not erode a right such that the right itself becomes illusory;” “the point where such a right becomes illusory, the limitation cannot be considered proportionate – the limitation becomes a violation of the right;” and “the Respondent State has not only denied the Endorois community all legal rights in their ancestral land, rendering their property rights essentially illusory, but in the name of creating a Game Reserve and the subsequent eviction of the Endorois community from their own land, the Respondent State has violated the very essence of the right itself, and cannot justify such an interference with reference to ‘the general interest of the community’ or a ‘public need’”).

[19]Id. para. 189 (finding that “the Respondent has not adequately substantiated its claim that the eviction of the Ogiek population was for the preservation of the natural ecosystem of the Mau Forest. Considering that the Respondent has interfered with the cultural rights of the Ogieks through the evictions and given that the Respondent invokes the same justification of preserving the natural ecosystem for its interference, the Court reiterates its position that the interference cannot be said to have been warranted by an objective and reasonable justification. … In view of this, the purported reason of preserving the natural environment cannot constitute a legitimate justification for the Respondent's interference with the Ogieks' exercise of their cultural rights”).

[20]See e.g.,Kichwa Indigenous People of Sarayaku v. Ecuador,IACTHR, Ser. C No. 245, 27 June 2012, para. 146 (explaining that “the protection of the territories of indigenous and tribal peoples also stems from the need to guarantee the security and continuity of their control and use of natural resources, which in turn allows them to maintain their lifestyle. This connection between territory and natural resources that indigenous and tribal peoples have traditionally maintained, one that is necessary for their physical and cultural survival and the development and continuation of their worldview…”); and Río Negro Massacres, IACTHR, Ser. C No. 250, 4 September 2012, at para. 177 (stating that “in keeping with its consistent case law on indigenous matters, in which it has recognized that the relationship of the indigenous peoples with the land is essential for maintaining their cultural structures and for their ethnic and material survival…”).

[21] Saramaka People, at para. 128 (“the State may restrict the Saramakas’ right to use and enjoy their traditionally owned lands and natural resources only when such restriction complies with the aforementioned requirements and, additionally, when it does not deny their survival as a tribal people”).

[29]Endorois, para. 199 (explaining that “The African Commission is of the view that … the Endorois property rights have been encroached upon, in particular by the expropriation and the effective denial of ownership of their land”); and Recommendations 2(a) (recommending that Kenya “Recognise rights of ownership to the Endorois and Restitute Endorois ancestral land”).

[30] AfCom v. Kenya, para. 219-20 (concerning restitution) and 223 (where “The Court decides that it shall rule on any other forms of reparations in a separate decision, taking into consideration the additional submissions from the Parties”).

[31] The UN Committee on the Elimination of Racial Discrimination, for instance, has explicitly articulated the principles applicable to establishment of nature reserves in indigenous peoples’ territories. Two main inter-related rules apply: first, in 2002, the Committee held that “no decisions directly relating to the rights and interests of members of indigenous peoples be taken without their informed consent” in connection with a nature reserve in Botswana. Botswana. 23/08/2002, A/57/18,paras.292-314, at 304. Second, in connection with a national park in Sri Lanka, the Committee called on the state to “recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources.” Sri Lanka. 14/09/2001, A/56/18, paras. 321-342, at 335. See also Ethiopia, CERD/C/ETH/CO/15, para. 22; and Suriname, CERD/C/SUR/CO/13-15, para. 26. More generally, the Committee has recognized that indigenous peoples have a right to restitution of their traditional territories and resources that also applies to nature reserves previously established in their territories. See e.g., Concluding observations of the Committee on the Elimination of Racial Discrimination: Guatemala, CERD/C/GTM/CO/11, 15 May 2006, at para. 17.

[32]Durban Accord: Action Plan, adopted at the Vth IUCN World Parks Congress, Durban South Africa (2003), at p. 248-9, calling for “participatory mechanisms for the restitution of indigenous peoples’ traditional lands and territories that were incorporated in protected areas without their free and informed consent…;” and A strategy of innovative approaches and recommendations to enhance the diversity, quality and vitality of governance in the next decade, 2014 World Parks Congress, at p. 7, deciding that “Governments and UN human rights bodies … [should] establish effective monitoring, restitution and accountability mechanisms to ensure that rights-based approaches and international standards of justice are applied in all conservation programmes. This should redresspast and ongoing injustices suffered by indigenous peoples … including restitution of lands expropriated without free, prior and informed consent…”).

[34]Id. at para. 116 (see also para. 311-13, 337(26)), and, at para. 313 (ordering that “the State must take the measures necessary to ensure that Decree No. 11,804 [concerning the protected area] is not an obstacle to returning the traditional land to the members of the Community”)).

[36]Id. para. 166 (explaining that that “the violations that have been verified owing to the failure to recognize the property of the Kaliña and Lokono, as well as the failure to delimit their territory, do not allow this Court to know the precise dimension of their traditional territory that is within these reserves, and which has already resulted in the violation of the right to collective property”).

[40]Id. para. 173 (also explaining that “the Court finds that a protected area consists not only of its biological dimension, but also of its socio-cultural dimension and that, therefore, it requires an interdisciplinary, participatory approach”). See also para. 181 (stating that “…the protection of natural areas and the right of the indigenous and tribal peoples to the protection of the natural resources in their territories are compatible, and it emphasizes that, owing to their interrelationship with nature and their ways of life, the indigenous and tribal peoples can make an important contribution to such conservation”).

[42]Id. at para. 165 (stating that “in the case of the Xákmok Kásek, the Court established that: ‘[…] the State must adopt the necessary measures to ensure that [its domestic law concerning a protected area] does not represent an obstacle to the return of the traditional lands to the members of the Community.’ It should be noted that, in that case, the protected area was established at a time when the Court had jurisdiction”) (footnote omitted).

[43]Report of the Special Rapporteur of the Human Rights Council on the rights of indigenous peoples, A/71/229, 29 July 2016 (hereinafter “VTC 2016”); and Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, A/HRC/34/49, 19 January 2017 (hereinafter “JK 2017”).

[45] VTC 2016, para. 19 (further observing that “among the principal challenges that indigenous peoples continue to face globally are difficulties in gaining legal recognition of collective ownership over their ancestral lands, especially when these have already been declared protected territories. National legislation is often contradictory. Laws pertaining to conservation and forestry are commonly not harmonized with subsequent national legislation and international law asserting the rights of indigenous peoples and the authorities responsible for enforcement of the different laws frequently fail to coordinate”).

[47] VTC 2016, para. 9 (stating that “The three Special Rapporteurs on the rights of indigenous peoples have, since the creation of the mandate, paid particular attention to the human rights violations that conservation measures have caused indigenous peoples worldwide, notably by the expropriation of land, forced displacement, denial of self-governance, lack of access to livelihoods and loss of culture and spiritual sites, non-recognition of their own authorities and denial of access to justice and reparation, including restitution and compensation”); and para. 51 (stating that “The respective Special Rapporteurs on the rights of indigenous peoples have, since the establishment of the mandate in 2001, received numerous allegations of large-scale violations of the rights of indigenous peoples in the context of conservation measures”).

[48]Id. para. 38 (further explaining that “conservation efforts in countries where indigenous peoples remain marginalized have had the least sustainable and successful outcomes, which has prompted scrutiny of international conservation policies”); and 52.